The Third Branch

Leadership

Feathering our nest: The court’s role in promoting pro bono work

It’s one of those sad realities about which courts often lament but can’t quite seem to solve: the teeming numbers of litigants appearing before them who need but cannot afford counsel.

Just about every year, the Planning Subcommittee of the Supreme Court’s Planning and Policy Advisory Committee polls judges and court administrators about the most pressing problems facing the court, and every year the challenge of self-represented litigants is at or near the top of the list.

Wisconsin courts have made noteworthy in-roads into the problem, for example, by providing forms and other information that guide laypersons how to seek the court’s assistance, by hosting and sponsoring self-help centers for litigants (the Milwaukee Justice Center, built right into the Milwaukee County Courthouse, is one outstanding example), and by orienting court procedures and requirements to the abilities and resources of people without lawyers.

But what solutions are there for cases in which self-help will not suffice? In which the help a litigant really needs is a lawyer?

There are no silver bullet solutions for this problem. But one partial solution has been to enlist the aid of lawyers, who owe a duty (see Supreme Court Rule 20:6.1) to represent those who cannot afford a lawyer. The willingness of lawyers to represent those in need has now become a resource that courts cannot afford to ignore, and must foster. Indeed, in helping lawyers understand and fulfill their pro bono responsibilities, courts can help themselves develop another solution to the challenge of self-represented litigants.

The potential that might be tapped is significant. There are more than 20,000 lawyers licensed to practice in the state of Wisconsin. For each of them who might be persuaded to provide 50 hours of free or reduced fee services (the aspirational goal established in the ethics code), think of how many unrepresented litigants in eviction cases, or uncontested divorce cases, or post-judgment family matters, or injunction proceedings involving victims of spousal, child, elder, and other domestic abuse, or the like, might have competent representation.

Experience teaches, though, that enlisting pro bono lawyers takes a dedicated effort. pro bono lawyers are not trolling the hallways of federal and county courthouses hoping to happen upon clients in need. As helpful as the State Bar and other professional organizations have been in organizing pro bono efforts, they have neither the focused incentive nor as firm a grasp on the particular contours of the need to handle the problem for the courts.

Experience around the country has taught that in solving this challenge, courts, and particularly judges, are in the best position to lead the profession to apply its pro bono efforts to the growing problem of unrepresented litigants. Thus, in state after state – California, Colorado, Maryland, Michigan, Montana, New Hampshire, Utah, Wyoming, and others – judges and court systems are launching programs and making rule changes to enable judges to encourage, recruit and guide the pro bono efforts of the bar.

Here are some practical, low-cost, and effective methods courts can employ to foster a pro bono ethic within our legal community.

Judges can participate on bar committees that support and organize legal assistance to the unrepresented. Judicial participation demonstrates to the bar the priority that judges and our court system place on their pro bono contributions.

Judges can help recruit pro bono volunteers. I participate in Milwaukee in a program loosely dubbed the pro bono Road Show, which entails traveling from firm to firm with a team of lawyers who manage lawyer volunteer programs and poverty law firms. We meet directly with lawyers, particularly with newer associates, to recruit and inspire them to recommit themselves to pro bono.

Judges can participate in events where pro bono work is being recognized, to show our support and our appreciation. In Milwaukee, the Milwaukee Bar Association sponsors a “pro bono Cocktail Hour” each year during National pro bono Week (the third week of October), during which pro bono work is extolled and encouraged and recognized. This year’s Cocktail Hour served as the occasion to recognize honorees in the Wisconsin pro bono Honor Society, a joint project of the Wisconsin Access to Justice Commission and the State Bar.

It has become a familiar role for courts to play: leading community initiatives to address the needs of those who cannot help themselves. Aiding the cause of pro bono representation presents such an opportunity, with the added benefit of helping ourselves solve one of our own perennial challenges.